Family Law FAQs

At Samuels Law Office, we do our best to provide you with accurate and helpful information. Family Law cases are very fact specific and the outcomes vary by case. The following information is not intended to be legal advice; rather, it is intended to give you some useful information for consideration.

Q: How much does it cost to get divorced?

A: Coming to an agreement with your spouse is the best way to save money. Certainly it is not always possible to agree on every issue, but if you can agree on some things, it limits the issues for the court and your attorney. You should also be willing to do the “leg work”- get copies of your finance and put them in a binder in a clear and concise manor, saving your attorney time organizing stacks of paperwork. Provide your attorney with names, addresses and phone numbers of witnesses and get a written statement when possible. Remember, if your attorney has not called or e-mailed you, it probably means there is no news, so save yourself money by limiting the number of calls or e-mails to your attorney to check the status of your case.

Q: How long does it take to get divorced?

A: There is a mandatory six month waiting period if the wife is pregnant or if the parties have minor children together. There is a two month waiting period in all other cases. However, no case is final until there is an agreement of the parties or a trial; so many cases take longer than the mandatory waiting period.

Q: How does the Court decide who gets physical custody of the children?

A: Physical custody relates to who the children live with primarily. Legal custody relates to who gets to make major decisions for the children, such as the school they attend and whether to have elective surgery. The Court is required to examine the “Best Interest factors” and determine what is in the best interest of the children for both legal and physical custody. If there is a current order in place, i.e. you are trying to change custody, the person seeking custody must first prove that there is proper cause or a change of circumstances and then the court will examine the best interest factors. Proper cause or a change in circumstances must be a significant to the child and not normal life changes.

Q: What are the Best Interest Factors?

A: The best interest factors are as follows:

The love, affection, and other emotional ties existing between the parties involved and the child.

The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in his or her religion or creed, if any.

The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

The permanence, as a family unit, of the existing or proposed custodial home or homes.

The moral fitness of the parties involved.

The mental and physical health of the parties involved.

The home, school, and community record of the child.

The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

Domestic violence, whether or not it occurred in the child’s presence.

1Any other factor considered by the court to be relevant to a particular child custody dispute.

Q: What if my wife is pregnant with someone else child?

A: The final judgment of divorce must state that you are not the father of the child. There is a presumption that any child born or conceived during the marriage is a product of the marriage.

Q: If the other party gets custody, when will I get to see my children?

A: The party who is not awarded physical custody will usually be awarded parenting time. The amount and frequency of parenting time varies by case and by county. As a general guide, the non-custodial parent often receives every other weekend, one weekday evening, alternating holidays, and half of all school breaks. Contact your local Friend of the Court to get a copy of their standard policy or visit our links page and view the Model Parenting Time Handbook.

Q: How does the court divide property in a divorce?

A: The court is required to make and equitable division of property, which mean fair; however, many courts begin with the premise that an equal division of property is an equitable division.

Q: Is all the property I own divided?

A: Any property purchased or earned during the marriage is generally divisible. Items that were purchased prior to marriage or inherited and kept separate from the marital estate may not be considered for division depending on the facts.

Q: Is my spouse entitled to my retirement?

A: Any portion of a retirement earned as part of a person’s employment that was earned during the marriage is generally divisible between the parties. A spouse may be entitled to a portion of their former spouses Social Security retirement benefits if the marriage was 10 years or longer, depending on the income of the parties.

Q: Can I get spousal support/alimony or will I have to pay?

A: There is no guarantee in any case that either party will get spousal support. Whether a person will receive or pay spousal support is based on the court’s consideration of a number of factors, but it is generally more likely with long term marriages (20 years or more) and when the parties are advanced in age, such that it would be difficult to start a career. Whether a person is entitled to spousal support is based the court’s consideration of the following factors:

The past relations and conduct of the parties.

The length of the marriage.

The ability of the parties to work.

The source and the amount of property awarded to the parties.

The age of the parties.

The ability of the parties to pay alimony.

The present situation of the parties.

The needs of the parties.

The health of the parties.

The prior standard of living of the parties and whether either is responsible for the support of others.

General principles of equity.

Q: What is mediation?

A: Mediation is a procedure by which the parties meet with a trained facilitator to negotiate a settlement, rather than go to trial and let the court decide. There are various forms of mediation that result in a decision that is binding on the parties, or not binding. Mediation can include attorneys or it can be just the parties. The parties can agree to go to mediation or the court can order mediation.

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